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FEDERAL ACQUISITION CIRCULAR
February 2, 2012 Number 2005-55
Effective February 2, 2012
Looseleaf Pages
Federal Acquisition Circular (FAC) 2005-55 is issued
under the authority of the Secretary of Defense, the
Administrator of General Services, and the Administrator for
the National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition
Regulation (FAR) and other directive material contained in
FAC 2005-55 are effective January 3, 2012, except for Items
I, II, III, IV, and VI which are effective February 2, 2012.
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(BLANK PAGE)
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FAC 2005-55 FILING INSTRUCTIONS
NOTE: The FAR is segmented by subparts. The FAR page numbers
reflect FAR Subparts. For example, “2.1-1” is page 1 of
subpart
2.1.
Remove Pages Insert Pages
2.1-1 thru 2.1-10 2.1-1 thru 2.1-10
4.11-1 and 4.11-2 4.11-1 and 4.11-2
4.12-1 and 4.12-2 4.12-1 and 4.12-2
5.2-1 and 5.2-2 5.2-1 and 5.2-2
6.3-1 thru 6.3-6 6.3-1 thru 6.3-6
7.1-1 and 7.1-2 7.1-1 and 7.1-2
8.4-3 thru 8.4-12 8.4-3 thru 8.4-12
9.4-1 and 9.4-2 9.4-1 and 9.4-2
11.1-3 and 11.1-4 11.1-3 and 11.1-4
12.2-1 thru 12.2-4 12.2-1 thru 12.2-4
13.1-3 thru 13.1-6 13.1-3 thru 13.1-6
13.5-1 and 13.5-2 13.5-1 and 13.5-2
Part 16 TOC Part 16 TOC
pp. 16-1 and 16-2 pp. 16-1 and 16-2
16.2-1 and 16.2-2 16.2-1 and 16.2-2
16.5-3 thru 16.5-8 16.5-3 thru 16.5-8
16.6-1 thru 16.6-4 16.6-1 thru 16.6-4
17.5-1 thru 17.5-4 17.5-1 thru 17.5-4
18.1-1 and 18.1-2 18.1-1 and 18.1-2
25.7-3 and 25.7-4 25.7-3 and 25.7-4
26.2-1 and 26.2-2 26.2-1 and 26.2-2
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31.2-11 and 31.2-12 31.2-11 and 31.2-12
31.2-21 and 31.2-22 31.2-21 and 31.2-22
35.0-7 and 35.0-8 35.0-7 and 35.0-8
36.6-1 and 36.6-2 36.6-1 and 36.6-2
52.2-11 thru 52.2-12.6 52.2-11 thru 52.2-12.6
52.2-20.1 and 52.2-20.2 52.2-20.1 and 52.2-20.2
52.2-27 thru 52.2-36 52.2-27 thru 52.2-36
52.2-39 and 52.2-40 52.2-39 and 52.2-40
52.2-42.1 and 52.2-42.2 52.2-42.1 and 52.2-42.2
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SUBPART 2.1—DEFINITIONS 2.101
2.1-1
2.000 Scope of part.(a) This part—
(1) Defines words and terms that are frequently used inthe
FAR;
(2) Provides cross-references to other definitions in theFAR of
the same word or term; and
(3) Provides for the incorporation of these definitions
insolicitations and contracts by reference.
(b) Other parts, subparts, and sections of this regulation(48
CFR Chapter 1) may define other words or terms andthose definitions
only apply to the part, subpart, or sectionwhere the word or term
is defined (see the Index for locations).
Subpart 2.1—Definitions
2.101 Definitions.(a) A word or a term, defined in this section,
has the same
meaning throughout this regulation (48 CFR Chapter
1),unless—
(1) The context in which the word or term is used
clearlyrequires a different meaning; or
(2) Another FAR part, subpart, or section provides a dif-ferent
definition for the particular part or portion of the part.
(b) If a word or term that is defined in this section is
defineddifferently in another part, subpart, or section of this
regula-tion (48 CFR Chapter 1), the definition in—
(1) This section includes a cross-reference to the
otherdefinitions; and
(2) That part, subpart, or section applies to the word orterm
when used in that part, subpart, or section.
“Acquisition” means the acquiring by contract with appro-priated
funds of supplies or services (including construction)by and for
the use of the Federal Government through pur-chase or lease,
whether the supplies or services are already inexistence or must be
created, developed, demonstrated, andevaluated. Acquisition begins
at the point when agency needsare established and includes the
description of requirements tosatisfy agency needs, solicitation
and selection of sources,award of contracts, contract financing,
contract performance,contract administration, and those technical
and managementfunctions directly related to the process of
fulfilling agencyneeds by contract.
“Acquisition planning” means the process by which theefforts of
all personnel responsible for an acquisition are coor-dinated and
integrated through a comprehensive plan for ful-filling the agency
need in a timely manner and at a reasonablecost. It includes
developing the overall strategy for managingthe acquisition.
“Adequate evidence” means information sufficient to sup-port the
reasonable belief that a particular act or omission
hasoccurred.
“Advisory and assistance services” means those servicesprovided
under contract by nongovernmental sources to sup-
port or improve: organizational policy development;
deci-sion-making; management and administration; program and/or
project management and administration; or R&D activities.It can
also mean the furnishing of professional advice or assis-tance
rendered to improve the effectiveness of Federal man-agement
processes or procedures (including those of anengineering and
technical nature). In rendering the foregoingservices, outputs may
take the form of information, advice,opinions, alternatives,
analyses, evaluations, recommenda-tions, training and the
day-to-day aid of support personnelneeded for the successful
performance of ongoing Federaloperations. All advisory and
assistance services are classifiedin one of the following
definitional subdivisions:
(1) Management and professional support services,i.e.,
contractual services that provide assistance, advice ortraining for
the efficient and effective management and oper-ation of
organizations, activities (including management andsupport services
for R&D activities), or systems. These ser-vices are normally
closely related to the basic responsibilitiesand mission of the
agency originating the requirement for theacquisition of services
by contract. Included are efforts thatsupport or contribute to
improved organization of programmanagement, logistics management,
project monitoring andreporting, data collection, budgeting,
accounting, perfor-mance auditing, and administrative technical
support for con-ferences and training programs.
(2) Studies, analyses and evaluations, i.e., contractedservices
that provide organized, analytical assessments/eval-uations in
support of policy development, decision-making,management, or
administration. Included are studies in sup-port of R&D
activities. Also included are acquisitions of mod-els,
methodologies, and related software supporting studies,analyses or
evaluations.
(3) Engineering and technical services, i.e.,
contractualservices used to support the program office during the
acqui-sition cycle by providing such services as systems
engineeringand technical direction (see 9.505-1(b)) to ensure the
effectiveoperation and maintenance of a weapon system or major
sys-tem as defined in OMB Circular No. A-109 or to providedirect
support of a weapon system that is essential to
research,development, production, operation or maintenance of
thesystem.
“Affiliates” means associated business concerns or indi-viduals
if, directly or indirectly—
(1) Either one controls or can control the other; or(2) A third
party controls or can control both.
“Agency head” or “head of the agency” means the Secre-tary,
Attorney General, Administrator, Governor, Chairper-son, or other
chief official of an executive agency, unlessotherwise indicated,
including any deputy or assistant chiefofficial of an executive
agency.
“Alternate” means a substantive variation of a basic provi-sion
or clause prescribed for use in a defined circumstance. It
(FAC 2005–55)
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2.101 FEDERAL ACQUISITION REGULATION
2.1-2
adds wording to, deletes wording from, or substitutes speci-fied
wording for a portion of the basic provision or clause.
Thealternate version of a provision or clause is the basic
provisionor clause as changed by the addition, deletion, or
substitution(see 52.105(a)).
“Architect-engineer services,” as defined in 40 U.S.C.1102,
means—
(1) Professional services of an architectural or engineer-ing
nature, as defined by State law, if applicable, that arerequired to
be performed or approved by a person licensed,registered, or
certified to provide those services;
(2) Professional services of an architectural or engineer-ing
nature performed by contract that are associated withresearch,
planning, development, design, construction, alter-ation, or repair
of real property; and
(3) Those other professional services of an architecturalor
engineering nature, or incidental services, that members ofthe
architectural and engineering professions (and individualsin their
employ) may logically or justifiably perform, includ-ing studies,
investigations, surveying and mapping, tests,evaluations,
consultations, comprehensive planning, programmanagement,
conceptual designs, plans and specifications,value engineering,
construction phase services, soils engi-neering, drawing reviews,
preparation of operating and main-tenance manuals, and other
related services.
“Assignment of claims” means the transfer or making overby the
contractor to a bank, trust company, or other financinginstitution,
as security for a loan to the contractor, of its rightto be paid by
the Government for contract performance.
“Assisted acquisition” means a type of interagency acqui-sition
where a servicing agency performs acquisition activi-ties on a
requesting agency’s behalf, such as awarding andadministering a
contract, task order, or delivery order.
“Basic research” means that research directed towardincreasing
knowledge in science. The primary aim of basicresearch is a fuller
knowledge or understanding of the subjectunder study, rather than
any practical application of thatknowledge.
“Best value” means the expected outcome of an acquisitionthat,
in the Government’s estimation, provides the greatestoverall
benefit in response to the requirement.
“Bid sample” means a product sample required to be sub-mitted by
an offeror to show characteristics of the offeredproducts that
cannot adequately be described by specifica-tions, purchase
descriptions, or the solicitation (e.g., balance,facility of use,
or pattern).
“Biobased product” means a product determined by theU.S.
Department of Agriculture to be a commercial or indus-trial product
(other than food or feed) that is composed, inwhole or in
significant part, of biological products, includingrenewable
domestic agricultural materials (including plant,animal, and marine
materials) or forestry materials.
“Broad agency announcement” means a general announce-ment of an
agency’s research interest including criteria forselecting
proposals and soliciting the participation of all off-erors capable
of satisfying the Government’s needs (see6.102(d)(2)).
“Building or work” means construction activity as distin-guished
from manufacturing, furnishing of materials, or ser-vicing and
maintenance work. The terms include, withoutlimitation, buildings,
structures, and improvements of alltypes, such as bridges, dams,
plants, highways, parkways,streets, subways, tunnels, sewers,
mains, power lines, pump-ing stations, heavy generators, railways,
airports, terminals,docks, piers, wharves, ways, lighthouses,
buoys, jetties,breakwaters, levees, canals, dredging, shoring,
rehabilitationand reactivation of plants, scaffolding, drilling,
blasting, exca-vating, clearing, and landscaping. The manufacture
or fur-nishing of materials, articles, supplies, or equipment
(whetheror not a Federal or State agency acquires title to such
materi-als, articles, supplies, or equipment during the course of
themanufacture or furnishing, or owns the materials from whichthey
are manufactured or furnished) is not “building” or“work” within
the meaning of this definition unless conductedin connection with
and at the site of such building or work asis described in the
foregoing sentence, or under the UnitedStates Housing Act of 1937
and the Housing Act of 1949 inthe construction or development of
the project.
“Bundled contract” means a contract where the require-ments have
been consolidated by bundling. (See the definitionof bundling.)
“Bundling” means—(1) Consolidating two or more requirements for
sup-
plies or services, previously provided or performed under
sep-arate smaller contracts, into a solicitation for a single
contractthat is likely to be unsuitable for award to a small
businessconcern due to—
(i) The diversity, size, or specialized nature of theelements of
the performance specified;
(ii) The aggregate dollar value of the anticipatedaward;
(iii) The geographical dispersion of the contract per-formance
sites; or
(iv) Any combination of the factors described inparagraphs
(1)(i), (ii), and (iii) of this definition.
(2) “Separate smaller contract” as used in this defini-tion,
means a contract that has been performed by one or moresmall
business concerns or that was suitable for award to oneor more
small business concerns.
(3) “Single contract” as used in this definition,includes—
(i) Multiple awards of indefinite-quantity contractsunder a
single solicitation for the same or similar supplies orservices to
two or more sources (see FAR 16.504(c)); and
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SUBPART 2.1—DEFINITIONS 2.101
2.1-3
(ii) An order placed against an indefinite quantitycontract
under a—
(A) Federal Supply Schedule contract; or(B) Task-order contract
or delivery-order contract
awarded by another agency (i.e., Governmentwide acquisi-tion
contract or multi-agency contract).
(4) This definition does not apply to a contract that willbe
awarded and performed entirely outside of the UnitedStates.
“Business unit” means any segment of an organization, oran
entire business organization that is not divided intosegments.
“Central Contractor Registration (CCR) database” meansthe
primary Government repository for contractor informa-tion required
for the conduct of business with theGovernment.
“Certified cost or pricing data” means “cost or pricingdata”
that were required to be submitted in accordance withFAR 15.403-4
and 15.403-5 and have been certified, or isrequired to be
certified, in accordance with 15.406-2. Thiscertification states
that, to the best of the person’s knowledgeand belief, the cost or
pricing data are accurate, complete, andcurrent as of a date
certain before contract award. Cost or pric-ing data are required
to be certified in certain procurements(10 U.S.C. 2306a and 41
U.S.C. 254b).
“Change-of-name agreement” means a legal instrumentexecuted by
the contractor and the Government that recog-nizes the legal change
of name of the contractor without dis-turbing the original
contractual rights and obligations of theparties.
“Change order” means a written order, signed by the con-tracting
officer, directing the contractor to make a change thatthe Changes
clause authorizes the contracting officer to orderwithout the
contractor’s consent.
“Chief Acquisition Officer” means an executive levelacquisition
official responsible for agency performance ofacquisition
activities and acquisition programs created pursu-ant to the
Services Acquisition Reform Act of 2003, Section1421 of Public Law
108-136.
“Chief of mission” means the principal officer in charge ofa
diplomatic mission of the United States or of a United Statesoffice
abroad which is designated by the Secretary of State asdiplomatic
in nature, including any individual assigned undersection 502(c) of
the Foreign Service Act of 1980 (Public Law96-465) to be
temporarily in charge of such a mission oroffice.
“Claim” means a written demand or written assertion byone of the
contracting parties seeking, as a matter of right, thepayment of
money in a sum certain, the adjustment or inter-pretation of
contract terms, or other relief arising under orrelating to the
contract. However, a written demand or writtenassertion by the
contractor seeking the payment of money
exceeding $100,000 is not a claim under the Contract Dis-putes
Act of 1978 until certified as required by the Act. Avoucher,
invoice, or other routine request for payment that isnot in dispute
when submitted is not a claim. The submissionmay be converted to a
claim, by written notice to the contract-ing officer as provided in
33.206(a), if it is disputed either asto liability or amount or is
not acted upon in a reasonable time.
“Classified acquisition” means an acquisition in which off-erors
must have access to classified information to properlysubmit an
offer or quotation, to understand the performancerequirements, or
to perform the contract.
“Classified contract” means any contract in which the
con-tractor or its employees must have access to classified
infor-mation during contract performance. A contract may be
aclassified contract even though the contract document itself
isunclassified.
“Classified information” means any knowledge that can
becommunicated or any documentary material, regardless of
itsphysical form or characteristics, that—
(1)(i) Is owned by, is produced by or for, or is under
thecontrol of the United States Government; or
(ii) Has been classified by the Department of Energyas privately
generated restricted data following the proceduresin 10 CFR
1045.21; and
(2) Must be protected against unauthorized disclosureaccording
to Executive Order 12958, Classified NationalSecurity Information,
April 17, 1995, or classified in accor-dance with the Atomic Energy
Act of 1954.
“Cognizant Federal agency” means the Federal agencythat, on
behalf of all Federal agencies, is responsible for estab-lishing
final indirect cost rates and forward pricing rates, ifapplicable,
and administering cost accounting standards forall contracts in a
business unit.
“Combatant commander” means the commander of a uni-fied or
specified combatant command established in accor-dance with 10
U.S.C. 161.
“Commercial component” means any component that is acommercial
item.
“Commercial computer software” means any computersoftware that
is a commercial item.
“Commercial item” means—(1) Any item, other than real property,
that is of a type
customarily used by the general public or by non-governmen-tal
entities for purposes other than governmental purposes,and—
(i) Has been sold, leased, or licensed to the generalpublic;
or
(ii) Has been offered for sale, lease, or license to thegeneral
public;
(2) Any item that evolved from an item described inparagraph (1)
of this definition through advances in technol-ogy or performance
and that is not yet available in the com-mercial marketplace, but
will be available in the commercial
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2.101 FEDERAL ACQUISITION REGULATION
2.1-4
marketplace in time to satisfy the delivery requirements undera
Government solicitation;
(3) Any item that would satisfy a criterion expressed
inparagraphs (1) or (2) of this definition, but for—
(i) Modifications of a type customarily available inthe
commercial marketplace; or
(ii) Minor modifications of a type not customarilyavailable in
the commercial marketplace made to meet Fed-eral Government
requirements. Minor modifications meansmodifications that do not
significantly alter the nongovern-mental function or essential
physical characteristics of an itemor component, or change the
purpose of a process. Factors tobe considered in determining
whether a modification is minorinclude the value and size of the
modification and the com-parative value and size of the final
product. Dollar values andpercentages may be used as guideposts,
but are not conclusiveevidence that a modification is minor;
(4) Any combination of items meeting the requirementsof
paragraphs (1), (2), (3), or (5) of this definition that are ofa
type customarily combined and sold in combination to thegeneral
public;
(5) Installation services, maintenance services, repairservices,
training services, and other services if—
(i) Such services are procured for support of an itemreferred to
in paragraph (1), (2), (3), or (4) of this definition,regardless of
whether such services are provided by the samesource or at the same
time as the item; and
(ii) The source of such services provides similar ser-vices
contemporaneously to the general public under termsand conditions
similar to those offered to the FederalGovernment;
(6) Services of a type offered and sold competitively
insubstantial quantities in the commercial marketplace based
onestablished catalog or market prices for specific tasks
per-formed or specific outcomes to be achieved and under stan-dard
commercial terms and conditions. For purposes of theseservices—
(i) “Catalog price” means a price included in a cata-log, price
list, schedule, or other form that is regularly main-tained by the
manufacturer or vendor, is either published orotherwise available
for inspection by customers, and statesprices at which sales are
currently, or were last, made to a sig-nificant number of buyers
constituting the general public; and
(ii) “Market prices” means current prices that areestablished in
the course of ordinary trade between buyers andsellers free to
bargain and that can be substantiated throughcompetition or from
sources independent of the offerors.
(7) Any item, combination of items, or service referredto in
paragraphs (1) through (6) of this definition, notwith-standing the
fact that the item, combination of items, or ser-vice is
transferred between or among separate divisions,subsidiaries, or
affiliates of a contractor; or
(8) A nondevelopmental item, if the procuring agencydetermines
the item was developed exclusively at privateexpense and sold in
substantial quantities, on a competitivebasis, to multiple State
and local governments.
“Commercially available off-the-shelf (COTS)” item—(1) Means any
item of supply (including construction
material) that is—(i) A commercial item (as defined in paragraph
(1) of
the definition in this section);(ii) Sold in substantial
quantities in the commercial
marketplace; and(iii) Offered to the Government, under a
contract or
subcontract at any tier, without modification, in the same
formin which it is sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in section 3of the
Shipping Act of 1984 (46 U.S.C. App. 1702), such asagricultural
products and petroleum products.
“Common item” means material that is common to theapplicable
Government contract and the contractor’s otherwork.
“Component” means any item supplied to the Governmentas part of
an end item or of another component, except that foruse in—
(1) Part 25, see the definition in 25.003;(2) 52.225-1 and
52.225-3, see the definition in
52.225-1(a) and 52.225-3(a);(3) 52.225-9 and 52.225-11, see the
definition in
52.225-9(a) and 52.225-11(a); and(4) 52.225-21 and 52.225-23,
see the definition in
52.225-21(a) and 52.225-23(a).“Computer database” or “database”
means a collection of
recorded information in a form capable of, and for the
purposeof, being stored in, processed, and operated on by a
computer.The term does not include computer software.
“Computer software” —(1) Means (i) Computer pro-grams that
comprise a series of instructions, rules, routines, orstatements,
regardless of the media in which recorded, thatallow or cause a
computer to perform a specific operation orseries of operations;
and
(ii) Recorded information comprising source codelistings, design
details, algorithms, processes, flow charts,formulas, and related
material that would enable the computerprogram to be produced,
created, or compiled.
(2) Does not include computer databases or computersoftware
documentation.
“Computer software documentation” means owner’s man-uals, user’s
manuals, installation instructions, operatinginstructions, and
other similar items, regardless of storagemedium, that explain the
capabilities of the computer soft-ware or provide instructions for
using the software.
“Consent to subcontract” means the contracting officer’swritten
consent for the prime contractor to enter into a partic-ular
subcontract.
(FAC 2005–55)
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SUBPART 2.1—DEFINITIONS 2.101
2.1-5
“Construction” means construction, alteration, or
repair(including dredging, excavating, and painting) of
buildings,structures, or other real property. For purposes of
thisdefinition, the terms “buildings, structures, or other
realproperty” include, but are not limited to, improvements of
alltypes, such as bridges, dams, plants, highways,
parkways,streets, subways, tunnels, sewers, mains, power
lines,cemeteries, pumping stations, railways, airport
facilities,terminals, docks, piers, wharves, ways, lighthouses,
buoys,jetties, breakwaters, levees, canals, and
channels.Construction does not include the manufacture,
production,furnishing, construction, alteration, repair,
processing, orassembling of vessels, aircraft, or other kinds of
personalproperty (except that for use in subpart 22.5, see the
definitionat 22.502).
“Contiguous United States (CONUS)” means the48 contiguous States
and the District of Columbia.
“Contingency operation” (10 U.S.C. 101(a)(13)) means amilitary
operation that—
(1) Is designated by the Secretary of Defense as an oper-ation
in which members of the armed forces are or maybecome involved in
military actions, operations, or hostilitiesagainst an enemy of the
United States or against an opposingmilitary force; or
(2) Results in the call or order to, or retention on, activeduty
of members of the uniformed services under section 688,12301(a),
12302, 12304, 12305, or 12406 of 10 U.S.C.,Chapter 15 of 10 U.S.C.,
or any other provision of law duringa war or during a national
emergency declared by the Presi-dent or Congress.
“Continued portion of the contract” means the portion of
acontract that the contractor must continue to perform follow-ing a
partial termination.
“Contract” means a mutually binding legal relationshipobligating
the seller to furnish the supplies or services (includ-ing
construction) and the buyer to pay for them. It includes alltypes
of commitments that obligate the Government to anexpenditure of
appropriated funds and that, except as other-wise authorized, are
in writing. In addition to bilateral instru-ments, contracts
include (but are not limited to) awards andnotices of awards; job
orders or task letters issued under basicordering agreements;
letter contracts; orders, such as purchaseorders, under which the
contract becomes effective by writtenacceptance or performance; and
bilateral contract modifica-tions. Contracts do not include grants
and cooperative agree-ments covered by 31 U.S.C. 6301, et seq. For
discussion ofvarious types of contracts, see Part 16.
“Contract administration office” means an office that
per-forms—
(1) Assigned postaward functions related to the admin-istration
of contracts; and
(2) Assigned preaward functions.
“Contract clause” or “clause” means a term or conditionused in
contracts or in both solicitations and contracts, andapplying after
contract award or both before and after award.
“Contract modification” means any written change in theterms of
a contract (see 43.103).
“Contracting” means purchasing, renting, leasing, or oth-erwise
obtaining supplies or services from nonfederalsources. Contracting
includes description (but not determina-tion) of supplies and
services required, selection and solicita-tion of sources,
preparation and award of contracts, and allphases of contract
administration. It does not include makinggrants or cooperative
agreements.
“Contracting activity” means an element of an agency des-ignated
by the agency head and delegated broad authorityregarding
acquisition functions.
“Contracting office” means an office that awards or exe-cutes a
contract for supplies or services and performs post-award functions
not assigned to a contract administrationoffice (except for use in
Part 48, see also 48.001).
“Contracting officer” means a person with the authority toenter
into, administer, and/or terminate contracts and makerelated
determinations and findings. The term includes certainauthorized
representatives of the contracting officer actingwithin the limits
of their authority as delegated by the con-tracting officer.
“Administrative contracting officer (ACO)”refers to a contracting
officer who is administering contracts.“Termination contracting
officer (TCO)” refers to a contract-ing officer who is settling
terminated contracts. A single con-tracting officer may be
responsible for duties in any or all ofthese areas. Reference in
this regulation (48 CFR Chapter 1)to administrative contracting
officer or termination contract-ing officer does not—
(1) Require that a duty be performed at a particularoffice or
activity; or
(2) Restrict in any way a contracting officer in the
per-formance of any duty properly assigned.
“Contracting officer’s representative (COR)” means anindividual,
including a contracting officer’s technical repre-sentative (COTR),
designated and authorized in writing by thecontracting officer to
perform specific technical or adminis-trative functions.
“Conviction” means a judgment or conviction of a criminaloffense
by any court of competent jurisdiction, whetherentered upon a
verdict or a plea, and includes a convictionentered upon a plea of
nolo contendere. For use inSubpart 23.5, see the definition at
23.503.
“Cost or pricing data” (10 U.S.C. 2306a(h)(1) and41 U.S.C. 254b)
means all facts that, as of the date of priceagreement, or, if
applicable, an earlier date agreed uponbetween the parties that is
as close as practicable to the dateof agreement on price, prudent
buyers and sellers would rea-sonably expect to affect price
negotiations significantly. Costor pricing data are factual, not
judgmental; and are verifiable.
(FAC 2005–55)
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2.101 FEDERAL ACQUISITION REGULATION
2.1-6
While they do not indicate the accuracy of the
prospectivecontractor’s judgment about estimated future costs or
projec-tions, they do include the data forming the basis for that
judg-ment. Cost or pricing data are more than historical
accountingdata; they are all the facts that can be reasonably
expected tocontribute to the soundness of estimates of future costs
and tothe validity of determinations of costs already incurred.
Theyalso include, but are not limited to, such factors as—
(1) Vendor quotations;(2) Nonrecurring costs;(3) Information on
changes in production methods and
in production or purchasing volume;(4) Data supporting
projections of business prospects
and objectives and related operations costs;(5) Unit-cost trends
such as those associated with labor
efficiency;(6) Make-or-buy decisions;(7) Estimated resources to
attain business goals; and(8) Information on management decisions
that could
have a significant bearing on costs.“Cost realism” means that
the costs in an offeror’s
proposal—(1) Are realistic for the work to be performed;(2)
Reflect a clear understanding of the requirements;
and(3) Are consistent with the various elements of the off-
eror’s technical proposal.“Cost sharing” means an explicit
arrangement under which
the contractor bears some of the burden of reasonable,
alloca-ble, and allowable contract cost.
“Customs territory of the United States” means the50 States, the
District of Columbia, and Puerto Rico.
“Data other than certified cost or pricing data” means pric-ing
data, cost data, and judgmental information necessary forthe
contracting officer to determine a fair and reasonable priceor to
determine cost realism. Such data may include the iden-tical types
of data as certified cost or pricing data, consistentwith Table
15-2 of 15.408, but without the certification. Thedata may also
include, for example, sales data and any infor-mation reasonably
required to explain the offeror’s estimatingprocess, including, but
not limited to–
(1) The judgmental factors applied and the mathematicalor other
methods used in the estimate, including those used inprojecting
from known data; and
(2) The nature and amount of any contingencies includedin the
proposed price.
“Data Universal Numbering System (DUNS) number”means the 9-digit
number assigned by Dun and Bradstreet,Inc. (D&B), to identify
unique business entities, which is usedas the identification number
for Federal contractors.
“Data Universal Numbering System +4 (DUNS+4) num-ber” means the
DUNS number assigned by D&B plus a4-character suffix that may
be assigned by a business concern.
(D&B has no affiliation with this 4-character suffix.)
This4-character suffix may be assigned at the discretion of
thebusiness concern to establish additional CCR records for
iden-tifying alternative Electronic Funds Transfer (EFT)
accounts(see Subpart 32.11) for the same concern.
“Day” means, unless otherwise specified, a calendar
day.“Debarment” means action taken by a debarring official
under 9.406 to exclude a contractor from Government con-tracting
and Government-approved subcontracting for a rea-sonable, specified
period; a contractor that is excluded is“debarred.”
“Delivery order” means an order for supplies placedagainst an
established contract or with Government sources.
“Depreciation” means a charge to current operations
thatdistributes the cost of a tangible capital asset, less
estimatedresidual value, over the estimated useful life of the
asset in asystematic and logical manner. It does not involve a
processof valuation. Useful life refers to the prospective period
ofeconomic usefulness in a particular contractor’s operations
asdistinguished from physical life; it is evidenced by the actualor
estimated retirement and replacement practice of thecontractor.
“Descriptive literature” means information provided by
anofferor, such as cuts, illustrations, drawings, and
brochures,that shows a product’s characteristics or construction of
aproduct or explains its operation. The term includes only
thatinformation needed to evaluate the acceptability of the
prod-uct and excludes other information for operating or
maintain-ing the product.
“Design-to-cost” means a concept that establishes cost ele-ments
as management goals to achieve the best balancebetween life-cycle
cost, acceptable performance, and sched-ule. Under this concept,
cost is a design constraint during thedesign and development phases
and a management disciplinethroughout the acquisition and operation
of the system orequipment.
“Designated operational area” means a geographic areadesignated
by the combatant commander or subordinate jointforce commander for
the conduct or support of specified mil-itary operations.
“Direct cost” means any cost that is identified specificallywith
a particular final cost objective. Direct costs are not lim-ited to
items that are incorporated in the end product as mate-rial or
labor. Costs identified specifically with a contract aredirect
costs of that contract. All costs identified specificallywith other
final cost objectives of the contractor are directcosts of those
cost objectives.
“Direct acquisition” means a type of interagency acquisi-tion
where a requesting agency places an order directlyagainst a
servicing agency’s indefinite-delivery contract. Theservicing
agency manages the indefinite-delivery contract butdoes not
participate in the placement or administration of anorder.
(FAC 2005–55)
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SUBPART 2.1—DEFINITIONS 2.101
2.1-7
“Disaster Response Registry” means a voluntary registryof
contractors who are willing to perform debris removal,
dis-tribution of supplies, reconstruction, and other disaster
oremergency relief activities established in accordance with6
U.S.C. 796, Registry of Disaster Response Contractors.The Registry
contains information on contractors who arewilling to perform
disaster or emergency relief activitieswithin the United States and
its outlying areas. The Registryis accessed via
https://www.acquisition.gov and alternatelythrough the FEMA website
at http://www.fema.gov/business/index.shtm. (See 26.205.)
“Drug-free workplace” means the site(s) for the perfor-mance of
work done by the contractor in connection with aspecific contract
where employees of the contractor are pro-hibited from engaging in
the unlawful manufacture, distribu-tion, dispensing, possession, or
use of a controlled substance.
“Earned value management system” means a project man-agement
tool that effectively integrates the project scope ofwork with
cost, schedule and performance elements for opti-mum project
planning and control. The qualities and operat-ing characteristics
of an earned value management system aredescribed in American
National Standards Institute /Electron-ics Industries Alliance
(ANSI/EIA) Standard-748, EarnedValue Management Systems. (See OMB
Circular A-11,Part 7.)
“Economically disadvantaged women-owned small busi-ness (EDWOSB)
concern”—(see definition of “Women-Owned Small Business (WOSB)
Program” in this section).
“Effective date of termination” means the date on whichthe
notice of termination requires the contractor to stop per-formance
under the contract. If the contractor receives the ter-mination
notice after the date fixed for termination, then theeffective date
of termination means the date the contractorreceives the
notice.
“Electronic and information technology (EIT)” has thesame
meaning as “information technology” except EIT alsoincludes any
equipment or interconnected system or sub-system of equipment that
is used in the creation, conversion,or duplication of data or
information. The term EIT, includes,but is not limited to,
telecommunication products (such astelephones), information kiosks
and transaction machines,worldwide websites, multimedia, and office
equipment (suchas copiers and fax machines).
“Electronic commerce” means electronic techniques
foraccomplishing business transactions including electronic mailor
messaging, World Wide Web technology, electronic bulle-tin boards,
purchase cards, electronic funds transfer, and elec-tronic data
interchange.
“Electronic data interchange (EDI)” means a technique
forelectronically transferring and storing formatted
informationbetween computers utilizing established and published
for-mats and codes, as authorized by the applicable Federal
Infor-mation Processing Standards.
“Electronic Funds Transfer (EFT)” means any transfer offunds,
other than a transaction originated by cash, check, orsimilar paper
instrument, that is initiated through an electronicterminal,
telephone, computer, or magnetic tape, for the pur-pose of
ordering, instructing, or authorizing a financial insti-tution to
debit or credit an account. The term includesAutomated Clearing
House transfers, Fedwire transfers, andtransfers made at automatic
teller machines and point-of-saleterminals. For purposes of
compliance with 31 U.S.C. 3332and implementing regulations at 31
CFR Part 208, the term“electronic funds transfer” includes a
Governmentwide com-mercial purchase card transaction.
“End product” means supplies delivered under a line itemof a
Government contract, except for use in Part 25 and theassociated
clauses at 52.225-1, 52.225-3, and 52.225-5, seethe definitions in
25.003, 52.225-1(a), 52.225-3(a), and52.225-5(a).
“Energy-efficient product”— (1) Means a product that—(i) Meets
Department of Energy and Environmental
Protection Agency criteria for use of the Energy Star trade-mark
label; or
(ii) Is in the upper 25 percent of efficiency for all sim-ilar
products as designated by the Department of Energy’sFederal Energy
Management Program.
(2) As used in this definition, the term “product” doesnot
include any energy-consuming product or systemdesigned or procured
for combat or combat-related missions(42 U.S.C. 8259b).
“Energy-efficient standby power devices” means productsthat
use—
(1) External standby power devices, or that contain aninternal
standby power function; and
(2) No more than one watt of electricity in their standbypower
consuming mode or meet recommended low standbylevels as designated
by the Department of Energy FederalEnergy Management Program.
“Energy-savings performance contract” means a contractthat
requires the contractor to—
(1) Perform services for the design, acquisition, financ-ing,
installation, testing, operation, and where appropriate,maintenance
and repair, of an identified energy conservationmeasure or series
of measures at one or more locations;
(2) Incur the costs of implementing the energy savingsmeasures,
including at least the cost (if any) incurred in mak-ing energy
audits, acquiring and installing equipment, andtraining personnel
in exchange for a predetermined share ofthe value of the energy
savings directly resulting from imple-mentation of such measures
during the term of the contract;and
(3) Guarantee future energy and cost savings to
theGovernment.
“Environmentally preferable” means products or servicesthat have
a lesser or reduced effect on human health and the
FAC 2005–55 FEBRUARY 2, 2012
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2.101 FEDERAL ACQUISITION REGULATION
2.1-8
environment when compared with competing products or ser-vices
that serve the same purpose. This comparison may con-sider raw
materials acquisition, production, manufacturing,packaging,
distribution, reuse, operation, maintenance, or dis-posal of the
product or service.
“Excess personal property” means any personal propertyunder the
control of a Federal agency that the agency headdetermines is not
required for its needs or for the discharge ofits
responsibilities.
“Excluded Parties List System” means an electronic data-base
maintained and posted by the General Services Admin-istration
containing the list of all parties suspended, proposedfor
debarment, debarred, declared ineligible, or excluded
ordisqualified under the nonprocurement common rule by agen-cies,
Government corporations, or by the GovernmentAccountability
Office.
“Executive agency” means an executive department, a mil-itary
department, or any independent establishment within themeaning of 5
U.S.C. 101, 102, and 104(1), respectively, andany wholly owned
Government corporation within the mean-ing of 31 U.S.C. 9101.
“Facilities capital cost of money” means “cost of money asan
element of the cost of facilities capital” as used at48 CFR
9904.414—Cost Accounting Standard—Cost ofMoney as an Element of the
Cost of Facilities Capital.
“Facsimile” means electronic equipment that communi-cates and
reproduces both printed and handwritten material. Ifused in
conjunction with a reference to a document;e.g., facsimile bid, the
terms refers to a document (in theexample given, a bid) that has
been transmitted to andreceived by the Government via
facsimile.
“Federal agency” means any executive agency or any inde-pendent
establishment in the legislative or judicial branch ofthe
Government (except the Senate, the House of Represen-tatives, the
Architect of the Capitol, and any activities underthe Architect’s
direction).
“Federally-controlled facilities” means—(1) Federally-owned
buildings or leased space, whether
for single or multi-tenant occupancy, and its grounds
andapproaches, all or any portion of which is under the
jurisdic-tion, custody or control of a department or agency;
(2) Federally-controlled commercial space shared
withnon-government tenants. For example, if a department oragency
leased the 10th floor of a commercial building, theDirective
applies to the 10th floor only;
(3) Government-owned, contractor-operated facilities,including
laboratories engaged in national defense researchand production
activities; and
(4) Facilities under a management and operating con-tract, such
as for the operation, maintenance, or support of aGovernment-owned
or Government-controlled research,development, special production,
or testing establishment.
“Federally-controlled information system” means aninformation
system (44 U.S.C. 3502(8) used or operated by aFederal agency, or a
contractor or other organization on behalfof the agency (44 U.S.C.
3544(a)(1)(A)).
“Federally Funded Research and Development Centers(FFRDC’s)”
means activities that are sponsored under a broadcharter by a
Government agency (or agencies) for the purposeof performing,
analyzing, integrating, supporting, and/ormanaging basic or applied
research and/or development, andthat receive 70 percent or more of
their financial support fromthe Government; and—
(1) A long-term relationship is contemplated;(2) Most or all of
the facilities are owned or funded by
the Government; and(3) The FFRDC has access to Government and
supplier
data, employees, and facilities beyond that common in a nor-mal
contractual relationship.
“Final indirect cost rate” means the indirect cost rate
estab-lished and agreed upon by the Government and the contractoras
not subject to change. It is usually established after the closeof
the contractor’s fiscal year (unless the parties decide upona
different period) to which it applies. For
cost-reimbursementresearch and development contracts with
educational institu-tions, it may be predetermined; that is,
established for a futureperiod on the basis of cost experience with
similar contracts,together with supporting data.
“First article” means a preproduction model, initial pro-duction
sample, test sample, first lot, pilot lot, or pilot models.
“First article testing” means testing and evaluating the
firstarticle for conformance with specified contract
requirementsbefore or in the initial stage of production.
“F.o.b.” means free on board. This term is used in conjunc-tion
with a physical point to determine—
(1) The responsibility and basis for payment of freightcharges;
and
(2) Unless otherwise agreed, the point where title forgoods
passes to the buyer or consignee.
“F.o.b. destination” means free on board at destination;i.e.,
the seller or consignor delivers the goods on seller’s
orconsignor’s conveyance at destination. Unless the
contractprovides otherwise, the seller or consignor is responsible
forthe cost of shipping and risk of loss. For use in the clause
at52.247-34, see the definition at 52.247-34(a).
“F.o.b. origin” means free on board at origin; i.e., the
selleror consignor places the goods on the conveyance. Unless
thecontract provides otherwise, the buyer or consignee is
respon-sible for the cost of shipping and risk of loss. For use in
theclause at 52.247-29, see the definition at 52.247-29(a).
“F.o.b.”…(For other types of F.o.b., see 47.303).“Forward
pricing rate agreement” means a written agree-
ment negotiated between a contractor and the Government tomake
certain rates available during a specified period for usein pricing
contracts or modifications. These rates represent
(FAC 2005–55)
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SUBPART 2.1—DEFINITIONS 2.101
2.1-8.1
reasonable projections of specific costs that are not easily
esti-mated for, identified with, or generated by a specific
contract,contract end item, or task. These projections may include
ratesfor such things as labor, indirect costs, material
obsolescenceand usage, spare parts provisioning, and material
handling.
“Forward pricing rate recommendation” means a rate
setunilaterally by the administrative contracting officer for useby
the Government in negotiations or other contract actionswhen
forward pricing rate agreement negotiations have notbeen completed
or when the contractor will not agree to a for-ward pricing rate
agreement.
“Freight” means supplies, goods, and transportableproperty.
“Full and open competition,” when used with respect to acontract
action, means that all responsible sources are permit-ted to
compete.
“General and administrative (G&A) expense” means
anymanagement, financial, and other expense which is incurredby or
allocated to a business unit and which is for the generalmanagement
and administration of the business unit as awhole. G&A expense
does not include those managementexpenses whose beneficial or
causal relationship to costobjectives can be more directly measured
by a base other thana cost input base representing the total
activity of a businessunit during a cost accounting period.
“Governmentwide acquisition contract (GWAC)” means atask-order
or delivery-order contract for information technol-ogy established
by one agency for Governmentwide use thatis operated—
(1) By an executive agent designated by the Office ofManagement
and Budget pursuant to 40 U.S.C. 11302(e); or
(2) Under a delegation of procurement authority issuedby the
General Services Administration (GSA) prior toAugust 7, 1996, under
authority granted GSA by former sec-tion 40 U.S.C. 759, repealed by
Pub. L. 104-106. The Econ-omy Act does not apply to orders under a
Governmentwideacquisition contract.
“Governmentwide point of entry (GPE)” means the singlepoint
where Government business opportunities greater than$25,000,
including synopses of proposed contract actions,solicitations, and
associated information, can be accessedelectronically by the
public. The GPE is located at http://www.fedbizopps.gov.
“Head of the agency” (see “agency head”).“Head of the
contracting activity” means the official who
has overall responsibility for managing the
contractingactivity.
“Historically black college or university” means an insti-tution
determined by the Secretary of Education to meet therequirements of
34 CFR 608.2. For the Department ofDefense, the National
Aeronautics and Space Administration,and the Coast Guard, the term
also includes any nonprofit
research institution that was an integral part of such a
collegeor university before November 14, 1986.
“HUBZone” means a historically underutilized businesszone that
is an area located within one or more qualified cen-sus tracts,
qualified nonmetropolitan counties, lands withinthe external
boundaries of an Indian reservation, qualifiedbase closure areas,
or redesignated areas, as defined in 13 CFR126.103.
“HUBZone contract” means a contract awarded to a“HUBZone small
business” concern through any of the fol-lowing procurement
methods:
(1) A sole source award to a HUBZone small businessconcern.
(2) Set-aside awards based on competition restricted toHUBZone
small business concerns.
(3) Awards to HUBZone small business concernsthrough full and
open competition after a price evaluationpreference in favor of
HUBZone small business concerns.
“HUBZone small business concern” means a small busi-ness concern
that appears on the List of Qualified HUBZoneSmall Business
Concerns maintained by the Small BusinessAdministration (13 CFR
126.103).
“Humanitarian or peacekeeping operation” means a mili-tary
operation in support of the provision of humanitarian orforeign
disaster assistance or in support of a peacekeepingoperation under
Chapter VI or VII of the Charter of the UnitedNations. The term
does not include routine training, forcer o t a t io n , o r s t a
t io n in g (1 0 U.S . C . 2 3 0 2 ( 8 ) a n d41 U.S.C.
259(d)).
“In writing,” “writing,” or “written” means any worded
ornumbered expression that can be read, reproduced, and
latercommunicated, and includes electronically transmitted
andstored information.
“Indirect cost” means any cost not directly identified witha
single final cost objective, but identified with two or morefinal
cost objectives or with at least one intermediate
costobjective.
“Indirect cost rate” means the percentage or dollar factorthat
expresses the ratio of indirect expense incurred in a givenperiod
to direct labor cost, manufacturing cost, or anotherappropriate
base for the same period (see also “final indirectcost rate”).
“Ineligible” means excluded from Government contract-ing (and
subcontracting, if appropriate) pursuant to statutory,Executive
order, or regulatory authority other than this regu-lation (48 CFR
Chapter 1) and its implementing and supple-menting regulations; for
example, pursuant to the Davis-Bacon Act and its related statutes
and implementing regula-tions, the Service Contract Act, the Equal
EmploymentOpportunity Acts and Executive orders, the
Walsh-HealeyPublic Contracts Act, the Buy American Act, or the
Environ-mental Protection Acts and Executive orders.
(FAC 2005–55)
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2.101 FEDERAL ACQUISITION REGULATION
2.1-8.2
“Information security” means protecting information
andinformation systems from unauthorized access, use, disclo-sure,
disruption, modification, or destruction in order to pro-vide—
(1) Integrity, which means guarding against improperinformation
modification or destruction, and includes ensur-ing information
nonrepudiation and authenticity;
(2) Confidentiality, which means preserving
authorizedrestrictions on access and disclosure, including means
for pro-tecting personal privacy and proprietary information;
and
(3) Availability, which means ensuring timely and reli-able
access to, and use of, information.
“Information technology” means any equipment, or inter-connected
system(s) or subsystem(s) of equipment, that isused in the
automatic acquisition, storage, analysis, evalua-tion,
manipulation, management, movement, control, display,switching,
interchange, transmission, or reception of data orinformation by
the agency.
(1) For purposes of this definition, equipment is used byan
agency if the equipment is used by the agency directly oris used by
a contractor under a contract with the agency thatrequires—
(i) Its use; or(ii) To a significant extent, its use in the
performance
of a service or the furnishing of a product.(2) The term
“information technology” includes com-
puters, ancillary equipment (including imaging
peripherals,input, output, and storage devices necessary for
security andsurveillance), peripheral equipment designed to be
controlledby the central processing unit of a computer, software,
firm-ware and similar procedures, services (including support
ser-vices), and related resources.
(3) The term “information technology” does not includeany
equipment that—
(i) Is acquired by a contractor incidental to a con-tract;
or
(ii) Contains imbedded information technology thatis used as an
integral part of the product, but the principalfunction of which is
not the acquisition, storage, analysis,evaluation, manipulation,
management, movement, control,display, switching, interchange,
transmission, or reception ofdata or information. For example, HVAC
(heating, ventila-tion, and air conditioning) equipment, such as
thermostats ortemperature control devices, and medical equipment
whereinformation technology is integral to its operation, are
notinformation technology.
“Inherently governmental function” means, as a matter ofpolicy,
a function that is so intimately related to the publicinterest as
to mandate performance by Government employ-ees. This definition is
a policy determination, not a legal deter-mination. An inherently
governmental function includesactivities that require either the
exercise of discretion in apply-ing Government authority, or the
making of value judgmentsin making decisions for the Government.
Governmental func-tions normally fall into two categories: the act
of governing,i.e., the discretionary exercise of Government
authority, andmonetary transactions and entitlements.
(1) An inherently governmental function involves,among other
things, the interpretation and execution of thelaws of the United
States so as to—
(i) Bind the United States to take or not to take someaction by
contract, policy, regulation, authorization, order,
orotherwise;
(ii) Determine, protect, and advance United Stateseconomic,
political, territorial, property, or other interests bymilitary or
diplomatic action, civil or criminal judicial pro-ceedings,
contract management, or otherwise;
(FAC 2005–55)
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SUBPART 2.1—DEFINITIONS 2.101
2.1-9
(iii) Significantly affect the life, liberty, or propertyof
private persons;
(iv) Commission, appoint, direct, or control officersor
employees of the United States; or
(v) Exert ultimate control over the acquisition, use,or
disposition of the property, real or personal, tangible
orintangible, of the United States, including the collection,
con-trol, or disbursement of Federal funds.
(2) Inherently governmental functions do not normallyinclude
gathering information for or providing advice, opin-ions,
recommendations, or ideas to Government officials.They also do not
include functions that are primarily ministe-rial and internal in
nature, such as building security, mail oper-ations, operation of
cafeterias, housekeeping, facilitiesoperations and maintenance,
warehouse operations, motorvehicle fleet management operations, or
other routine electri-cal or mechanical services.
“Inspection” means examining and testing supplies or ser-vices
(including, when appropriate, raw materials, compo-nents, and
intermediate assemblies) to determine whetherthey conform to
contract requirements.
“Insurance” means a contract that provides that for a
stip-ulated consideration, one party undertakes to indemnifyanother
against loss, damage, or liability arising from anunknown or
contingent event.
“Interagency acquisition” means a procedure by which anagency
needing supplies or services (the requesting agency)obtains them
from another agency (the servicing agency), byan assisted
acquisition or a direct acquisition. The termincludes—
(1) Acquisitions under the Economy Act (31 U.S.C. 1535);and
(2) Non-Economy Act acquisitions completed under otherstatutory
authorities, (e.g., General Services AdministrationFederal Supply
Schedules in subpart 8.4 and Government-wide acquisition contracts
(GWACs)).
“Invoice” means a contractor’s bill or written request
forpayment under the contract for supplies delivered or
servicesperformed (see also “proper invoice”).
“Irrevocable letter of credit” means a written commitmentby a
federally insured financial institution to pay all or part ofa
stated amount of money, until the expiration date of the let-ter,
upon the Government’s (the beneficiary) presentation ofa written
demand for payment. Neither the financial institu-tion nor the
offeror/contractor can revoke or condition the let-ter of
credit.
“Labor surplus area” means a geographical area identifiedby the
Department of Labor in accordance with20 CFR Part 654, Subpart A,
as an area of concentratedunemployment or underemployment or an
area of laborsurplus.
“Labor surplus area concern” means a concern thattogether with
its first-tier subcontractors will perform sub-
stantially in labor surplus areas. Performance is
substantiallyin labor surplus areas if the costs incurred under the
contracton account of manufacturing, production, or performance
ofappropriate services in labor surplus areas exceed 50 percentof
the contract price.
“Latent defect” means a defect that exists at the time
ofacceptance but cannot be discovered by a
reasonableinspection.
“Major system” means that combination of elements thatwill
function together to produce the capabilities required tofulfill a
mission need. The elements may include hardware,equipment,
software, or any combination thereof, but excludeconstruction or
other improvements to real property. A systemis a major system
if—
(1) The Department of Defense is responsible for thesystem and
the total expenditures for research, development,test, and
evaluation for the system are estimated to be morethan $189.5
million or the eventual total expenditure for theacquisition
exceeds $890 million;
(2) A civilian agency is responsible for the system andtotal
expenditures for the system are estimated to exceed $2million or
the dollar threshold for a “major system” estab-lished by the
agency pursuant to Office of Management andBudget Circular A-109,
entitled “Major System Acquisi-tions,” whichever is greater; or
(3) The system is designated a “major system” by thehead of the
agency responsible for the system(10 U.S.C. 2302 and 41 U.S.C.
403).
“Make-or-buy program” means that part of a contractor’swritten
plan for a contract identifying those major items to beproduced or
work efforts to be performed in the prime con-tractor’s facilities
and those to be subcontracted.
“Market research” means collecting and analyzing infor-mation
about capabilities within the market to satisfy agencyneeds.
“Master solicitation” means a document containing specialclauses
and provisions that have been identified as essentialfor the
acquisition of a specific type of supply or service thatis acquired
repetitively.
“May” denotes the permissive. However, the words “noperson may…”
mean that no person is required, authorized, orpermitted to do the
act described.
“Micro-purchase” means an acquisition of supplies or ser-vices
using simplified acquisition procedures, the aggregateamount of
which does not exceed the micro-purchasethreshold.
“Micro-purchase threshold” means $3,000, except itmeans—
(1) For acquisitions of construction subject to theDavis-Bacon
Act, $2,000;
(2) For acquisitions of services subject to the ServiceContract
Act, $2,500; and
(FAC 2005–55)
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2.101 FEDERAL ACQUISITION REGULATION
2.1-10
(3) For acquisitions of supplies or services that, as
deter-mined by the head of the agency, are to be used to support
acontingency operation or to facilitate defense against orrecovery
from nuclear, biological, chemical, or radiologicalattack, as
described in 13.201(g)(1), except for constructionsubject to the
Davis-Bacon Act (41 U.S.C. 428a)—
(i) $15,000 in the case of any contract to be awardedand
performed, or purchase to be made, inside the UnitedStates; and
(ii) $30,000 in the case of any contract to be awardedand
performed, or purchase to be made, outside the UnitedStates.
“Minority Institution” means an institution of higher edu-cation
meeting the requirements of Section 365(3) of theHigher Education
Act of 1965 (20 U.S.C. 1067k), including aHispanic-serving
institution of higher education, as defined inSection 502(a) of the
Act (20 U.S.C. 1101a).
“Multi-agency contract (MAC)” means a task-order
ordelivery-order contract established by one agency for use
byGovernment agencies to obtain supplies and services, consis-tent
with the Economy Act (see 17.502-2). Multi-agency con-tracts
include contracts for information technologyestablished pursuant to
40 U.S.C. 11314(a)(2).
“Must” (see “shall”).“National defense” means any activity
related to programs
for military or atomic energy production or construction,
mil-itary assistance to any foreign nation, stockpiling, or
space,except that for use in Subpart 11.6, see the definition
in11.601.
“Neutral person” means an impartial third party, whoserves as a
mediator, fact finder, or arbitrator, or otherwisefunctions to
assist the parties to resolve the issues in contro-versy. A neutral
person may be a permanent or temporaryofficer or employee of the
Federal Government or any otherindividual who is acceptable to the
parties. A neutral personmust have no official, financial, or
personal conflict of interestwith respect to the issues in
controversy, unless the interest isfully disclosed in writing to
all parties and all parties agree thatthe neutral person may serve
(5 U.S.C. 583).
“Nondevelopmental item” means—(1) Any previously developed item
of supply used
exclusively for governmental purposes by a Federal agency,a
State or local government, or a foreign government withwhich the
United States has a mutual defense cooperationagreement;
(2) Any item described in paragraph (1) of this defini-tion that
requires only minor modification or modifications ofa type
customarily available in the commercial marketplace inorder to meet
the requirements of the procuring department oragency; or
(3) Any item of supply being produced that does notmeet the
requirements of paragraphs (1) or (2) solely becausethe item is not
yet in use.
“Novation agreement” means a legal instrument—
(1) Executed by the—(i) Contractor (transferor);(ii) Successor
in interest (transferee); and(iii) Government; and
(2) By which, among other things, the transferor guar-antees
performance of the contract, the transferee assumes allobligations
under the contract, and the Government recog-nizes the transfer of
the contract and related assets.
“Offer” means a response to a solicitation that, if
accepted,would bind the offeror to perform the resultant
contract.Responses to invitations for bids (sealed bidding) are
offerscalled “bids” or “sealed bids”; responses to requests for
pro-posals (negotiation) are offers called “proposals”;
however,responses to requests for quotations (simplified
acquisition)are “quotations,” not offers. For unsolicited
proposals, seeSubpart 15.6.
“Offeror” means offeror or bidder.“Office of Small and
Disadvantaged Business Utilization”
means the Office of Small Business Programs when referringto the
Department of Defense.
“Online Representations and Certifications Application(ORCA)”
means the primary Government repository for con-tractor submitted
representations and certifications requiredfor the conduct of
business with the Government. AccessORCA via
https://www.acquisition.gov.
“Option” means a unilateral right in a contract by which,for a
specified time, the Government may elect to purchaseadditional
supplies or services called for by the contract, ormay elect to
extend the term of the contract.
“Organizational conflict of interest” means that because ofother
activities or relationships with other persons, a person isunable
or potentially unable to render impartial assistance oradvice to
the Government, or the person’s objectivity in per-forming the
contract work is or might be otherwise impaired,or a person has an
unfair competitive advantage.
“Outlying areas” means—(1) Commonwealths.(i) Puerto Rico.
(ii) The Northern Mariana Islands;(2) Territories.(i) American
Samoa.
(ii) Guam.(iii) U.S. Virgin Islands; and
(3) Minor outlying islands.(i) Baker Island.(ii) Howland
Island.(iii) Jarvis Island.(iv) Johnston Atoll.(v) Kingman
Reef.(vi) Midway Islands.(vii) Navassa Island.(viii) Palmyra
Atoll.(ix) Wake Atoll.
“Overtime” means time worked by a contractor’semployee in excess
of the employee’s normal workweek.
“Overtime premium” means the difference between thecontractor’s
regular rate of pay to an employee for the shiftinvolved and the
higher rate paid for overtime. It does not
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SUBPART 4.11—CENTRAL CONTRACTOR REGISTRATION 4.1103
4.11-1
Subpart 4.11—Central Contractor Registration
4.1100 Scope.This subpart prescribes policies and procedures for
requir-
ing contractor registration in the Central Contractor
Registra-tion (CCR) database to—
(a) Increase visibility of vendor sources (including
theirgeographical locations) for specific supplies and services;
and
(b) Establish a common source of vendor data for
theGovernment.
4.1101 Definition.As used in this subpart—“Agreement” means
basic agreement, basic ordering
agreement, or blanket purchase agreement.
4.1102 Policy.(a) Prospective contractors shall be registered in
the CCR
database prior to award of a contract or agreement,
exceptfor—
(1) Purchases that use a Governmentwide commercialpurchase card
as both the purchasing and payment mecha-nism, as opposed to using
the purchase card only as a paymentmethod;
(2) Classified contracts (see 2.101) when registration inthe CCR
database, or use of CCR data, could compromise thesafeguarding of
classified information or national security;
(3) Contracts awarded by—(i) Deployed contracting officers in
the course of
military operations, including, but not limited to,
contingencyoperations as defined in 10 U.S.C. 101(a)(13) or
humanitar-ian or peacekeeping operations as defined in10 U.S.C.
2302(7); or
(ii) Contracting officers in the conduct of emergencyoperations,
such as responses to natural or environmentaldisasters or national
or civil emergencies, e.g., Robert T.Stafford Disaster Relief and
Emergency Assistance Act(42 U.S.C. 5121);
(4) Contracts to support unusual or compelling needs(see
6.302-2);
(5) Awards made to foreign vendors for work performedoutside the
United States, if it is impractical to obtain CCRregistration;
and
(6) Micro-purchases that do not use the electronic fundstransfer
(EFT) method for payment and are not required to bereported (see
Subpart 4.6).
(b) If practical, the contracting officer shall modify
thecontract or agreement awarded under paragraph (a)(3) or(a)(4) of
this section to require CCR registration.
(c) (1) (i) If a contractor has legally changed its
businessname, “doing business as” name, or division name
(whicheveris shown on the contract), or has transferred the assets
used in
performing the contract, but has not completed the
necessaryrequirements regarding novation and change-of-name
agree-ments in Subpart 42.12, the contractor shall provide
theresponsible contracting officer a minimum of one businessday’s
written notification of its intention to change the namein the CCR
database; comply with the requirements ofSubpart 42.12; and agree
in writing to the timeline and proce-dures specified by the
responsible contracting officer. Thecontractor must provide with
the notification sufficient docu-mentation to support the legally
changed name.
(ii) If the contractor fails to comply with the require-ments of
paragraph (g)(1)(i) of the clause at 52.204-7, CentralContractor
Registration, or fails to perform the agreement
at52.204-7(g)(1)(i)(C), and, in the absence of a properly exe-cuted
novation or change-of-name agreement, the CCR infor-mation that
shows the contractor to be other than thecontractor indicated in
the contract will be considered to beincorrect information within
the meaning of the “Suspensionof Payment” paragraph of the EFT
clause of the contract.
(2) The contractor shall not change the name or addressfor
electronic funds transfer payments (EFT) or manual pay-ments, as
appropriate, in the CCR record to reflect an assigneefor the
purpose of assignment of claims (see Subpart 32.8,Assignment of
Claims).
(3) Assignees shall be separately registered in the CCRdatabase.
Information provided to the contractor’s CCRrecord that indicates
payments, including those made by EFT,to an ultimate recipient
other than that contractor will be con-sidered to be incorrect
information within the meaning of the“Suspension of payment”
paragraph of the EFT clause of thecontract.
4.1103 Procedures.(a) Unless the acquisition is exempt under
4.1102, the con-
tracting officer—(1) Shall verify that the prospective
contractor is regis-
tered in the CCR database (see paragraph (b) of this
section)before awarding a contract or agreement. Contracting
officersare encouraged to check the CCR early in the acquisition
pro-cess, after the competitive range has been established, andthen
communicate to the unregistered offerors that they
mustregister;
(2) Should use the DUNS number or, if applicable, theDUNS+4
number, to verify registration—
(i) Via the Internet via https://www.acquisition.gov;(ii) By
calling toll-free: 1-888-227-2423, commer-
cial: (269) 961-5757, or Defense Switched Network (DSN)(used at
certain Department of Defense locations): 932-5757;or
(iii) As otherwise provided by agency procedures;and
(3) Need not verify registration before placing an orderor call
if the contract or agreement includes the clause at
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4.1104 FEDERAL ACQUISITION REGULATION
4.11-2
52.204-7, or 52.212-4(t), or a similar agency clause, exceptwhen
use of the Governmentwide commercial purchase cardis contemplated
as a method of payment. (See 32.1108(b)(2)).
(b) If the contracting officer, when awarding a contract
oragreement, determines that a prospective contractor is not
reg-istered in the CCR database and an exception to the
registra-tion requirements for the award does not apply (see
4.1102),the contracting officer shall—
(1) If the needs of the requiring activity allow for adelay,
make award after the apparently successful offeror hasregistered in
the CCR database. The contracting officer shalladvise the offeror
of the number of days it will be allowed tobecome registered. If
the offeror does not become registeredby the required date, the
contracting officer shall award to thenext otherwise successful
registered offeror following thesame procedures (i.e., if the next
apparently successful offeroris not registered, the contracting
officer shall advise the off-eror of the number of days it will be
allowed to becomeregistered, etc.); or
(2) If the needs of the requiring activity do not allow fora
delay, proceed to award to the next otherwise successful reg-
istered offeror, provided that written approval is obtained
atone level above the contracting officer.
(c) Agencies shall protect against improper disclosure
ofcontractor CCR information.
(d) The contracting officer shall, on contractual
documentstransmitted to the payment office, provide the DUNS
number,or, if applicable, the DUNS+4, in accordance with
agencyprocedures.
4.1104 Disaster Response Registry.Contracting officers shall
consult the Disaster Response
Registry via https://www.acquisition.gov when contractingfor
debris removal, distribution of supplies, reconstruction,and other
disaster or emergency relief activities inside theUnited States and
outlying areas. (See 26.205).
4.1105 Solicitation provision and contract clauses.Except as
provided in 4.1102(a), use the clause at
52.204-7, Central Contractor Registration, in solicitations
andcontracts.
FAC 2005–55 FEBRUARY 2, 2012
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SUBPART 4.12—REPRESENTATIONS AND CERTIFICATIONS 4.1202
4.12-1
Subpart 4.12—Representations and Certifications
4.1200 Scope.This subpart prescribes policies and procedures for
requir-
ing submission and maintenance of representations and
certi-fications via the Online Representations and
CertificationsApplication (ORCA) to—
(a) Eliminate the administrative burden for contractors
ofsubmitting the same information to various contractingoffices;
and
(b) Establish a common source for this information to
pro-curement offices across the Government.
4.1201 Policy.(a) Prospective contractors shall complete
electronic
annual representations and certifications at ORCA accessedvia
https://www.acquisition.gov in conjunction with
requiredregistration in the Central Contractor Registration
(CCR)database (see FAR 4.1102).
(b)(1) Prospective contractors shall update the representa-tions
and certifications submitted to ORCA as necessary, butat least
annually, to ensure they are kept current, accurate, andcomplete.
The representations and certifications are effectiveuntil one year
from date of submission or update to ORCA.
(2) When any of the conditions in paragraph (b) of theclause at
52.219-28, Post-Award Small Business ProgramRerepresentation,
apply, contractors that represented theywere small businesses prior
to award of a contract must updatethe representations and
certifications in ORCA as directed bythe clause. Contractors that
represented they were other thansmall businesses prior to award of
a contract may update therepresentations and certifications in ORCA
as directed by theclause, if their size status has changed since
contract award.
(c) Data in ORCA is archived and is electronically retriev-able.
Therefore, when a prospective contractor has
completedrepresentations and certifications electronically via
ORCA,the contracting officer must reference the date of ORCA
ver-ification in the contract file, or include a paper copy of
theelectronically-submitted representations and certifications
inthe file. Either of these actions satisfies contract file
documen-tation requirements of 4.803(a)(11). However, if an
offeroridentifies changes to ORCA data pursuant to the FAR
provi-sions at 52.204-8(d) or 52.212-3(b), the contracting
officermust include a copy of the changes in the contract file.
4.1202 Solicitation provision and contract clause.Except for
commercial item solicitations issued under
FAR Part 12, insert in solicitations the provision at
52.204-8,Annual Representations and Certifications. The
contractingofficer shall check the applicable provisions at
52.204-8(c)(2). When the clause at 52.204-7, Central Con-tractor
Registration, is included in the solicitation, do notinclude the
following representations and certifications:
(a) 52.203-2, Certificate of Independent PriceDetermination.
(b) 52.203-11, Certification and Disclosure RegardingPayments to
Influence Certain Federal Transactions.
(c) 52.204-3, Taxpayer Identification.(d) 52.204-5, Women-Owned
Business (Other Than Small
Business).(e) 52.209-2, Prohibition on Contracting with
Inverted
Domestic Corporations—Representation.(f) 52.209-5, Certification
Regarding Responsibility Mat-
ters.(g) 52.214-14, Place of Performance—Sealed Bidding.(h)
52.215-6, Place of Performance.(i) 52.219-1, Small Business Program
Representations
(Basic & Alternate I).(j) 52.219-2, Equal Low Bids.(k)
52.219-22, Small Disadvantaged Business Status
(Basic & Alternate I).(l) 52.222-18, Certification Regarding
Knowledge of
Child Labor for Listed End Products.(m) 52.222-22, Previous
Contracts and Compliance
Reports.(n) 52.222-25, Affirmative Action Compliance.(o)
52.222-38, Compliance with Veterans’ Employment
Reporting Requirements.(p) 52.222-48, Exemption from Application
of the Service
Contract Act to Contracts for Maintenance, Calibration, orRepair
of Certain Equipment Certification.
(q) 52.222-52, Exemption from Application of the ServiceContract
Act to Contracts for Certain Services—Certification.
(r) 52.223-1, Biobased Product Certification.(s) 52.223-4,
Recovered Material Certification.(t) 52.223-9, Estimate of
Percentage of Recovered Mate-
rial Content for EPA-Designated Items (Alternate I only).(u)
52.225-2, Buy American Act Certificate.(v) 52.225-4, Buy American
Act—Free Trade Agree-
ments—Israeli Trade Act Certificate (Basic, Alternate I &
II).(w) 52.225-6, Trade Agreements Certificate.(x) 52.225-20,
Prohibition on Conducting Restricted Busi-
ness Operations in Sudan—Certification.(y) 52.225-25,
Prohibition on Contracting with Entities
Engaging in Sanctioned Activities Relating to
Iran—Repre-sentation and Certification.
(z) 52.226-2, Historically Black College or University
andMinority Institution Representation.
(aa) 52.227-6, Royalty Information (Basic & Alternate
I).(bb) 52.227-15, Representation of Limited Rights Data and
Restricted Computer Software.
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SUBPART 5.2—SYNOPSES OF PROPOSED CONTRACT ACTIONS 5.202
5.2-1
Subpart 5.2—Synopses of Proposed Contract Actions
5.201 General.(a) As required by the Small Business Act
(15 U.S.C. 637(e)) and the Office of Federal ProcurementPolicy
Act (41 U.S.C. 416), agencies must make notices ofproposed contract
actions available as specified inparagraph (b) of this section.
(b)(1) For acquisitions of supplies and services, other
thanthose covered by the exceptions in 5.202 and the special
situ-ations in 5.205, the contracting officer must transmit a
noticeto the GPE, for each proposed—
(i) Contract action meeting the threshold in5.101(a)(1);
(ii) Modification to an existing contract for addi-tional
supplies or services that meets the threshold in5.101(a)(1); or
(iii) Contract action in any amount when advanta-geous to the
Government.
(2) When transmitting notices using electronic com-merce,
contracting officers must ensure the notice is for-warded to the
GPE.
(c) The primary purposes of the notice are to improve
smallbusiness access to acquisition information and enhance
com-petition by identifying contracting and
subcontractingopportunities.
(d) The GPE may be accessed via the Internet at
http://www.fedbizopps.gov.
5.202 Exceptions.The contracting officer need not submit the
notice required
by 5.201 when—(a) The contracting officer determines that—
(1) The synopsis cannot be worded to preclude disclo-sure of an
agency’s needs and such disclosure would compro-mise the national
security (e.g., would result in disclosure ofclassified
information). The fact that a proposed solicitationor contract
action contains classified information, or thataccess to classified
matter may be necessary to submit a pro-posal or perform the
contract does not, in itself, justify use ofthis exception to
synopsis;
(2) The proposed contract action is made under the con-ditions
described in 6.302-2 (or, for purchases conductedusing simplified
acquisition procedures, if unusual and com-pelling urgency
precludes competition to the maximum extentpracticable) and the
Government would be seriously injuredif the agency complies with
the time periods specified in5.203;
(3) The proposed contract action is one for which eitherthe
written direction of a foreign government reimbursing theagency for
the cost of the acquisition of the supplies or ser-vices for such
government, or the terms of an international
agreement or treaty between the United States and a
foreigngovernment, or international organizations, has the effect
ofrequiring that the acquisition shall be from specified
sources;
(4) The proposed contract action is expressly authorizedor
required by a statute to be made through another Govern-ment
agency, including acquisitions from the Small
BusinessAdministration (SBA) using the authority of section 8(a)
ofthe Small Business Act (but see 5.205(f)), or from a
specificsource such as a workshop for the blind under the rules of
theCommittee for the Purchase from the Blind and OtherSeverely
Handicapped;
(5) The proposed contract action is for utility servicesother
than telecommunications services and only one sourceis
available;
(6) The proposed contract action